James Ross v. Frank Horton

FILED
NOT FOR PUBLICATION
JAN 13 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES ARTHUR ROSS, No. 13-35597
Plaintiff - Appellant, D.C. No. 3:09-cv-01530-HU
v. MEMORANDUM*
FRANK R. HORTON; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Submitted December 23, 2015**
Before: CLIFTON, N.R. SMITH, and CHRISTEN, Circuit Judges.
The district court had jurisdiction to correct a clerical error in its judgment.
Morris v. Morgan Stanley & Co., 942 F.2d 648, 654–55 (9th Cir. 1991). The
district court’s order was intended to be final, but was entered “without prejudice”
in error. Even though Ross’s notice of appeal was premature as to the final
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
judgment, the notice was validated when the district court amended its order
dismissing Ross’s claims with prejudice. See Cato v. Fresno City, 220 F.3d 1073,
1074–75 (9th Cir. 2000).
Claim one, deliberate indifference, was correctly dismissed. "We may
affirm the decision of the district court on any basis which the record supports."
Branson v. Nott, 62 F.3d 287, 291 (9th Cir. 1995) (affirming dismissal of the
complaint because the district court lacked subject matter jurisdiction). On the
merits, Ross did not allege that Dr. Gullick was deliberately indifferent to his pain;
he alleged that Dr. Gullick incorrectly concluded that he was not in pain. Even if
Ross had shown that Dr. Gullick misdiagnosed his condition, that does not
establish deliberate indifference. See Snow v. McDaniel, 681 F.3d 978, 987–88 (9th
Cir. 2012), overruled on other grounds by Peralta v. Dillard, 744 F.3d 1076 (9th
Cir. 2014) (en banc).
As to three of the five defendants, claim two, retaliation, was properly
dismissed. Ross has not presented any evidence to support his claims that Dr.
Gullick, Smith, or Gillum ordered him to be moved out of privileged housing. As
to defendants Horton and Bennett, claim two was improperly dismissed. Ross
presented evidence to support his allegations that: (1) Bennett stated the problem
was that Ross was a complainer; (2) Ross reported actual threats to Horton and
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Bennett and asked for help; (3) rather than respond to the threats, Horton and
Bennett ordered Ross to cell in with the inmate who threatened him. If proven,
these allegations would support a colorable retaliation claim.
Claim three, failure to protect, was correctly dismissed. Ross did not allege
that he suffered a cognizable injury as a result of the order that he “cell in” with an
alleged gang member.
To the extent Ross alleged a claim for equal protection, it was correctly
dismissed because Ross did not allege that other similarly situated inmates were
provided medical care that he was denied.
It is unclear whether Ross intended to appeal the dismissal of his due process
claim. If he did, it was properly dismissed. Ross did not allege that his
confinement represented an atypical, significant deprivation from that in the
general prison population. See Sandin v.Conner, 515 U.S. 472, 486 (1995).
The district court did not abuse its discretion when it denied Ross’s motion
to compel. Production of the requested blueprints posed a legitimate security
threat to the prison, and defendants provided an adequate response to Ross’s need
for information about the prison’s HVAC system.
Construed as a motion to strike, Ross’s request that we reject appellees’
answering brief is denied. Ross was not prejudiced by the one-day delay in filing
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the brief.
Affirmed in part, Reversed in part, and Remanded, with the parties to
bear their own costs.
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FILED
Ross v. Horton, 13-35597
JAN 13 2016
N.R. Smith, Circuit Judge, concurring in part and dissenting in part: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
The majority almost got it right, but it bent over backwards too far in trying
to preserve Ross’s retaliation claim against Horton and Bennett. I would affirm the
district court’s dismissal in all regards.
Ross alleges that (1) the defendants removed him from his privileged
housing (2) because (3) Ross filed grievances against medical staff, and that such
action (4) caused Ross to be moved out of Complex 1 and placed in a threatening
situation, which ultimately resulted in him being placed in disciplinary segregation
and losing privileges, and (5) for no reason other than to retaliate. See Rhodes v.
Robinson, 408 F.3d 559, 567–68 (9th Cir. 2004). The defendants produced
affidavits and evidence to show that Horton and Bennett were unaware of Ross’s
grievances against medical. The defendants also produced evidence that Horton
understood Ross was “removed from honor housing due to several complaints
regarding the HVAC system and that it was affecting his sinuses.” Ross has
presented nothing to contradict this evidence.
Ross claims only that (1) when he went to visit Horton in Complex 3,
Horton was “already aware” Ross had been transferred, and (2) Bennett told Ross
he had been moved for complaining. Even if true, these allegations show only that
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Horton and Bennett knew Ross had been transferred out of Complex 1 into
Complex 3 and that Horton and Bennett understood Ross had been moved for
complaining about the HVAC system. Ross has presented no evidence to support
his retaliation claim that Horton and Bennett transferred him out of Complex 1
because he filed grievances against the medical staff.
The majority disregards Ross’s retaliation claim about the transfer and
instead construes Ross’s claim 3 (failure to protect) as a retaliation claim. It then
determines that—because Ross claims (1) Bennett called him a complainer, (2)
Ross reported perceived threats to Horton and Bennett, and (3) Horton and Bennett
ordered Ross to cell-in despite the threats—Ross has presented a “colorable
retaliation claim.” However, Ross never asserts that Horton and Bennett retaliated
against him by ordering him to cell-in with an inmate who allegedly threatened
him. Even if Ross had made those assertions, the claim would have been properly
dismissed, because Ross presented no evidence to suggest Horton or Bennett knew
about Ross’s complaints against the medical staff. Although we must interpret pro
se complaints liberally, we may not manufacture claims never alleged by Ross and
support them with hypotheses rather than evidence.
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